Eleventh
Amendment Limitations on Federal PowerThe issue: To what
extent
does the 11th Amendment limit the power of the federal
government?
Is the 11th Amendment merely a limitation on judicial power, or does it
limit the power of Congress as well? Is there a constitutional
basis
for sovereign immunity?

Introduction

The Burger and
Rehnquist
and Roberts Courts have looked to the Eleventh Amendment as a building
block for
"the
new federalism." The amendment has been interpreted as a
limitation both on the power of the federal judiciary and the powers of
Congress--although the Eleventh Amendment, by its own
words,
would appear to be only a limitation on judicial power.

11th Amendment/ Sovereign Immunity

The Eleventh
Amendment
was a response to the Supreme Court's unpopular decision in Chisholm
v Georgia, in which the Court ordered Georgia to pay two South
Carolina
residents a debt the Court found was owed them. Georgia
legislators
were so outraged by the decision that the passed a law declaring that
anyone
who attempted to carrry out the Court's mandate would be hanged with
benefit
of clergy!

Read
literally, the Eleventh
Amendment places no limitations on the power of the judiciary to
entertain
suits brought by against a state by residents of that same state.
Nonetheless, the Court in a controversial 1890 decision, Hans v
Louisiana,
concluded that the Eleventh Amendment was in fact a bar to to federal
suits
against a state by that state's own citizens. The Court reasoned
that at the time of the amendment's ratification in 1798 that such a
limitation was
taken for granted.

The Court
limited the
effect of Hans somewhat in the 1908 case of Ex Parte Young.
The Court allowed a suit for injunctive relief against a state official
reasoning that if a state official violated the Constitution he can't
be
acting on behalf of a state, which can only act constitutionally.
Thus, state officials--but not states--might be sued when the violate
the
Constitution, even when they do so in the name of the state. Ex
Parte Young was in turn limited by the Court in Edelman v
Jordan (1974),
holding that the Eleventh Amendment also bars suits against state
officials
for restitution or damages that will in fact be paid out of the state
treasury.

In Seminole
Tribe of
Florida v Florida (1996), the Court indicated for the first time
that
Congress is without power under the Commerce Clause (or Indian Commerce
Clause) to abrogate a state's sovereign immunity. In so doing,
the
Court overruled an earlier (Pennsylvania v Union Gas, 1989)
decision
that found such authority to exist. According to the Court, only
under the Fourteenth Amendment does the Congress have the power to
abrogate
state sovereign immunity. In dissent, Justice Stevens warned of
the
far-reaching consequences of the Court's decision, which he called "a
shocking
affront to a co-equal branch of government."

In Alden v
Maine
(1999), the Court, by the same 5-4 margin seen in Seminole and Printz,
extended constitutional protection to states sued in their own STATE
courts
for federal law violations. Clearly, as the Court recognized,
this
result is not dictated (or even supported) by the language of the
Eleventh
Amendment. Instead, the Court concluded that the English
common-law
notion of sovereign immunity--reaching even suits against sovereigns in
their own courts--was implicitly adopted by the framers and ratifiers
of
the Constitution.

The 5-4
majority extended
the constitutionalized sovereign immunity doctrine yet again in 2002,
in
the case of Federal Maritime Commission v South Carolina State
Ports
Authority. Writing for the Court, Justice Thomas concluded
that
the Constitution shielded states from having to answer private
complaints
before federal agencies. The case represented the first time that
the sovereign immunity doctrine had been extended beyond the courtroom
to executive branch agencies. In dissent, Justice Breyer said
that
the majority opinion had no support "in any text, in any tradition, or
in any relevant purpose."

Amendment XI (1795)

The Judicial power of the
United States
shall not
be construed to extend to any suit in law or equity, commenced or
prosecuted
against one of the United States by Citizens of another State, or by
Citizens
or Subjects of any Foreign State.

1. Should the
11th
Amendment be read as placing any limitation on the ability of citizens
to bring suit against their own state?2. The Court
has
said that any abrogation of state immunity by Congress under its
14th Amendment powers must be crystal clear. Why? If
Congress
in fact has the power to abrogate, doesn't the Constitution demand that
the Court try to determine as best it can whether Congress has
exercised
that power?3. Should the
11th
Amendment be read as a limitation only on the power of the judiciary,
or
is it a limitation on the power of other branches as well?4. Why should
Congress
have a power to abrogate state sovereign immunity under its 14th
Amendment
power, but not under other powers?5. Does the
Court's
decision in Seminole Tribe of Florida v Florida mean that
states
are free to ignore federal bankruptcy law, federal copyright law, or
federal
anti-trust law? Could a state, for example, be sued for
republishing
without authorization a copyrighted textbook and then distributing it
to
public schools throughout the state?6. Which side
has
the better argument as to whether the Constitution creates a broad
right
of state sovereign immunity, even beyond that suggested by the 11th
Amendment standing alone?